Statebuilding and Justice Reform

Post-Conflict Reconstruction in Afghanistan

Matteo Tondini

• Publisher: Routledge
• Year: 2010
• Print ISBN: 9780415558945
• eBook ISBN: 9781135233181
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

The book provides an updated account of justice reform in Afghanistan, which started in the wake of the US-led military intervention of 2001. In particular, it focuses on the role of international actors and their interaction with local stakeholders, highlighting some provisional results, together with problems and dilemmas encountered in the reform activities.

Since the mid-1990s, justice system reform has become increasingly important in state-building operations, particularly with regard to the international administrations of Bosnia, Kosovo, East Slavonia and East Timor. Statebuilding and Justice Reform examines in depth the reform of justice in Afghanistan, evaluating whether the success of reform may be linked to any specific feature or approach. In doing so, it stresses the need for development programmes in the field of justice to be implemented through a multilateral approach, involving domestic authorities and other relevant stakeholders. Success is therefore linked to limiting the political interests of donors; establishing functioning pooled financing mechanisms; restricting the use of bilateral projects; improving the efficacy of technical and financial aid; and concentrating the attention on the 'demand for justice' at local level rather than on the traditional supply of financial and technical assistance.

This book will be of much interest to students of Afghanistan, intervention and statebuilding, peacekeeping, and post-conflict reconstruction, as well as International Relations in general.

Matteo Tondini is a researcher and a legal advisor. He has served as a project advisor to the Embassy of Italy in Kabul, Development Cooperation Unit, working within the 'Afghanistan Justice Program' and has a Phd in Political Systems and Institutional Change, from the Institute of Advanced Studies, Lucca, Italy.

1
Introduction

Justice reform and statebuilding in Afghanistan

Law is the pendulum of human society, regulating its action and mechanism. Just as a pendulum sometimes runs behind or ahead of time, so law occasionally leads or lags behind prevailing climates of opinion. When its pendulum breaks down completely a clock becomes functionally useless. […] [S]imilarly, […] [w]hen [the system of laws] is no longer in harmony with the communities that it governs, […] it may render justice ineptly and inefficiently. In the worst scenario law may give refuge and expression to the darkest, and most malign, forces in the human character.¹

What is law? This question lies at the very basis of the legal science. Since the times of Ancient Greece, philosophers and legal theorists have always tried to give a plausible answer, elaborating complex theories on the origin and the essence of law. In particular, scholars have attempted to answer three further questions: What does it mean to follow a ‘rule’? What is the difference between a legal and a moral obligation? More importantly: what is the difference between being obliged by force and obliged by law?² There are two possible approaches in responding to such queries. They reflect two distinct notions of the legal phenomenon. On the one hand we find the ‘autocratic’ conception of law: law is the rule imposed by the mighty, the tangible manifestation of a political order. In contrast, according to the ‘sociologic’ conception of law, law may be also considered as a social phenomenon, a product of the society, a set of norms which regulate the life of society, according to its beliefs and cultural orientation. The first notion entails a top-down approach in the formation of law: law descends from the mighty to the society. In the second case, law simply emerges from the society as a consequence of people’s life.

And what is ‘statebuilding’?³ This concept mainly refers to the process that aims at rebuilding the institutions of a weak, post-conflict or failing state, undertaken by international actors. In this respect, statebuilding always implies some form of external intervention. For intervening countries and organizations, this means, in the end, to exercise their own influence in the host country’s internal affairs. In fact, any kind of intervention entails a form of coercion, even though this may be exercised hypothetically without the use of force, for example only through the so-called ‘peace-conditionalities’.⁴

Therefore, justice system⁵ reform in a statebuilding operation implies an external intervention in the host country’s domestic legal order, aimed at reshaping justice institutions and the internal system of laws. Generally, international actors are able to influence the host country’s institution-building process on the basis of their financial/technical power and appeal. Moreover, in order to intervene in the host country’s legal order, international players need a mutually-shared reference model. This may be found in human rights standards and treaties, but also in the internal administrative organization of intervening states. Under this perspective, the (re)establishment of the rule of law in countries recovering from conflict is largely conceived as a one-way, top-down transfer of knowledge from ‘civilized’ to ‘fragile’ states⁶ – a technical problem, based on the replication of institutional models deemed universally applicable.

However, institutional changes do not take place in a political, legal and social vacuum. There is always an existing set of (maybe non-statutory) rules and institutions governing the life of local societies, which are the product of the historical, economic, political, social and even religious conditions in which people have been living. Social organizations always aim at a balance in human relations – which is not necessarily conflict-free – as a precondition for an ordered course of social life. In this regard, law is the way by which social balance is maintained. This bottom-up, social dimension of law and justice institutions clashes with the classic ‘dirigiste’ approach to justice reform in the above-mentioned statebuilding operations. As a consequence, justice system reform in statebuilding operations rests on a perennial struggle between these two conflicting pressures. Besides, the concept of statebuilding itself is formulated in a contradictory way, as, on the one hand, it aims at strengthening state sovereignty, while, on the other hand, it inevitably ends up in undermining the autonomy of the recipient state from external economic and technical dependency.⁷

Such a contradictory tendency, which affects justice system reform in state-building operations, may be summarized in the phrase: ‘only the mighty make the law’.⁸ Under this perspective, law is a ‘superstructure’, which reflects the existing political and social order – set up by whoever is able to do it. However, this naturally does not imply that any form of law is acceptable just because it is an instrument of power. Rather, the level of justice or injustice depends on how the power is practically administered and for what ends.⁹ In the context of statebuilding operations, the linkage between justice reform and the achievement of a lasting peace becomes fundamental. However, this relationship raises further questions, such as: ‘do these efforts actually provide […] justice and help build a just and lasting peace in [these] societies’?¹⁰ Or are such efforts simply aimed at achieving what scholars call ‘liberal peace’?¹¹ Are international actors mighty enough to impose their own rule of law formula? Do local actors have the power and authority to make their own orientations and strategies prevail over external organization models? Will a compromise between the two instances be successful?

All these questions assume a new and fundamental significance with the intervention in Afghanistan, born on the ashes of multilateralism and moulded since the beginning by strong ideological features. Indeed, in the wake of the 9/11 terrorist attacks, with the beginning of the War on Terror, the liberal peace theories reached their apex. The international community was believed to speak with only one voice: that of the US. The development cooperation policies themselves changed, rerouting humanitarian assistance towards the achievement of political goals. This ‘politicization’ of development assistance would presuppose a final political goal which would be mutually-shared by the community of national and international stakeholders participating in the country’s reconstruction. The substantial failure of the reconstruction process in Afghanistan could prove that such a political end-state was absent, probably from the beginning. Possibly, such a ‘common’ approach was nothing but the product of an ideological representation of reality – just like the GWOT itself¹² – which has led the US and its allies to foresee the establishment of ‘democratic’ and Western-oriented state institutions as a panacea to tackle situations of political instability. Indeed, in the initial expectations of the US government, the ‘clash of civilizations’¹³ between participating states and local ruling elites would have ended soon: both military interventions in Iraq and Afghanistan should have lasted a few months and should have been followed by a quick reconstruction, which would have helped in exporting liberal democracy and values in ‘freed’ countries. Accordingly, the reform of domestic legal and judicial systems would have been accepted by the local population, as a sign that the ‘victor’s justice’ was globally applicable.

However, things have gone differently. The progressive failure of both military expeditions in establishing order after conflict (and in the case of Afghanistan, basically in winning the war) has led to a ‘reawakening of consciousness’ within the international community. This impasse has also affected the US political credibility on the global stage, resulting in an increasing rivalry among the other intervening powers. In Afghanistan, such a competition has in turn impeded the formation of a common strategic vision for the end of the conflict and undermined the foundations themselves of this interventionist approach, so that the US and the other countries engaged in Afghanistan are now openly striving for an ‘exit strategy’. Ultimately, the economic crisis that the world is facing in Spring 2009 is wiping out the last financial and economic certainties of liberal democracies. In this context, the scientific and political community is searching for alternative models of development.

On the other hand, justice system reform in Afghanistan presents unique characteristics due to the socio-economic environment in which it takes place: a traditional Islamic society, mainly administered by council of elders rather than the state, and reluctant to any social or political change. In addition, differently from previous and contemporary statebuilding missions, the reform itself is materially carried out in a situation of armed confrontation. The latter affects the solidity of the internal political order, the establishment of a transitional justice phase, and thus the effectiveness of any successful legal and judicial reform. That in Afghanistan is therefore not a post-conflict but an in-conflict justice reform. In this sense, however, leaving the establishment of a solid political order behind the reform of justice practically reverses the theory of rule of law as the product of a social contract, thus undermining the foundation of the same liberal-democratic values that current justice reform aims at diffusing in the country. This basic contradiction has conditioned for many years the establishment of a common sector strategy, which has been frequently invoked in literature and official documents. However, we should ask ourselves whether it is really possible to set up a common strategy for justice sector reform in the absence of steady and credible local and international political authorities. In this respect, that in Afghanistan is a sui generis justice system reform, including elements of colonialism – such as the extensive use of the military apparatus in the reforms, the strong political pressure exercised by external actors on the local government, the latter’s lack of sovereignty, its dependency from foreign technical and financial resources – and local ownership – such as the adoption of inclusive development policies, the involvement of local authorities at all levels in the decisional process, and the formal adoption of each and every decision concerning justice sector reform solely by the Afghan government. However, in all probability this situation only reflects a provisional status quo, open to evolution. Unfortunately, at this stage of activities, it is difficult to predict the final outcome of this process.

Furthermore, the reform process itself has gone along with the adoption of new development cooperation policies by international institutions. In this respect, the limited results accomplished so far in the reform itself and the worsening of the security conditions have progressively led statebuilders to change approach. The latter has eventually shifted from an orientation focused on pre-established organizational models towards a mixed operational concept based on pragmatic political compromises and the formal involvement of national authorities in the reconstruction process. Such a change of course has been rather visible in the reform of governance mechanisms. In 2002, the security sector reform in Afghanistan was divided between ‘lead nations’, each one being in charge of managing the reconstruction activities within a single sector of responsibility (the ‘lead nation approach’). Italy was entrusted with the reform of justice. However, this mostly unilateral approach waned in 2006, when the whole policy-making framework in charge of reforms was reshaped comprehensively and aligned with the templates set by major International Financial Institutions for countries emerging from conflict. Since then, justice system reform has been carried out under a more inclusive approach, generating a mixed international–national governance regime. Eventually, this local ownership consolidating process has recently led to the adoption of a development strategy for justice sector (National Justice Sector Strategy) by the Afghan government, to be implemented through a National Justice Programme. The latter’s key feature is the use of an integrated funding structure to finance justice system reform, through the creation of a dedicated project, which is run jointly by the Afghan justice institutions. Such a project is funded by several donors through a trust fund, administered by the World Bank. In short, donors would grant the required financial assistance and monitor the status of activities, the World Bank would provide the technical expertise, and the local authorities would manage the project autonomously.

Generally, the application at the operational level of general policies and guidelines set up by International Financial Institutions proves that justice system reform in Afghanistan has also followed pre-established models and conformed to other contemporary statebuilding operations. Besides, even the adoption of a rather strict top-down approach in the first phase of activities could be considered as an evolution of the ‘benevolent despotism’¹⁴ of international actors, experimented during the previous territorial administrations of the 1990s, when international authorities were running quasi-state administrative apparatus in Bosnia, East Slavonia, East Timor and Kosovo. In this regard, the ‘light footprint approach’ (see section 2.1), officially adopted by the international community in Afghanistan in 2002 could be considered as a mere necessity imposed by the magnitude of the undertaking, rather than a genuine evolution in the overall approach to statebuilding. Such a major change would only occur with the evolution of development cooperation policies at international level, marked by the 2003 Rome Declaration on Aid Harmonization and the 2005 Paris Declaration on Aid Effectiveness, as well as through the integration of such principles (above all the ‘local ownership’ principle) in the current statebuilding agenda.

However, doubts remain on the success of this initiative. Will justice system reform be really successful, or will this change of approach be only a desperate attempt to make Western-oriented development policies bite?

In this context, the book analyses the post-2001 justice system reform in Afghanistan, focusing, in particular, on the role of intervening states. I will first illustrate the major changes that occurred after the September 11 attacks in development cooperation policies. To this aim, I will also analyse strategies and frameworks used at international level to foster the development of ‘fragile states’. I will also describe the rising of the ‘local ownership’ principle in development cooperation policies and how this theory is practically implemented through the establishment of joint ‘consultative’ and working groups (chapter 2). In chapter 3, I will explore statebuilding theories and methods, as applied to justice system reform in post-conflict scenarios. I will first consider imposed and consensual solutions, namely the ‘dirigiste’ and the consent-based approach. In addition, I will also look at the need to settle the domestic political order before providing to legal or judicial reforms. In the third section, I will illustrate the reasons for choosing a model of reform based on internal consensus and how to successfully rely on it, by considering the local ‘demand for justice’. I will then briefly examine the issue of transitional justice in post-conflict situations, extending the analysis to Afghanistan. In the end, I will list some common characteristics of statebuilding operations dealing with justice system reform, and make a comparison with the current state of affairs in Afghanistan.

The following chapter (chapter 4) will open with a description of the Afghan justice system’s development in the recent history. I will first examine the most relevant principles of Islamic law, which are of interest for this study. In the subsequent section I will focus on the influence of Islamic law over the Afghan justice system in the years prior to the US-led military intervention, starting from the reforms undertaken in the 1920s. A section will be dedicated to the justice system in place during the Taliban domination. In the subsequent two sections I will study the evolution of the Afghan legal and judicial systems from the 1960s to 2001. Chapter 5 will contain a detailed analysis of the Afghan justice system currently in force and the first phase of reform activities, going from the beginning of the international intervention to the opening of the London Conference on Afghanistan in 2006. Initially, I will concentrate on the study of institutional changes undertaken in the aftermath of the Bonn Agreement, also examining the Italian leadership in justice sector reform. I will then focus on the adoption of the 2004 Constitution and the reorganization of the domestic legal and court system. Specifically, I will divide this issue into four sub-sections, concerning the organization of courts, the applicable law, the legal training/capacity-building activities, and the reconstruction of judicial infrastructure. The last paragraph will be dedicated to a preliminary assessment of justice reform during the first phase of reconstruction.

In chapter 6, I will discuss the second phase of justice system reform, going from the London Conference to date. This phase is characterized by a rather more inclusive approach to reconstruction activities, with a wider participation of the Afghan authorities to the decisional process. First I will illustrate the evolution of the institutional scenario in Afghanistan starting from the London Conference to the Rome Conference of 2007. A further section will be dedicated to present some data and figures reflecting the status of justice before the opening of the Rome Conference. I will...

Table of contents

• Cass series on peacekeeping
• Contents
• Figures
• Preface
• Acknowledgements
• Abbreviations
• 1 Introduction
• 2 Reforming public institutions in countries recovering from conflict
• 3 Justice sector reform in countries recovering from conflict
• 4 The system of justice in Afghanistan before the US military intervention of 2001
• 5 From Tokyo to London: The ‘Lead Nation Approach’
• 6 From London to Paris and beyond: Implementing the local ownership principle in justice sector reform
• 7 Conclusion
• Notes
• Bibliography*
• Index